Garrett Epps

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.comHis book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.

Recent Articles

The Right to Tell Lies

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Most Supreme Court arguments last one hour—30 minutes for each side. At unpredictable intervals, however, the Court grants one party several extra millennia of agony as a once-solid case disintegrates in full view of the entire courtroom. This happened Wednesday in the argument in United States v. Alvarez , the much-discussed Stolen Valor Act case. The victim of the agony extension was Jonathan D. Libby, deputy federal public defender from Los Angeles. His client, Xavier Alvarez, is a habitual liar who has regularly and vainly tried to convince people that he is a former U.S. Marine, an old-timer with the Detroit Red Wings, the ex-husband of a Mexican movie star, the personal rescuer of the U.S. Ambassador to Iran—and, unfortunately for him, a recipient of the Congressional Medal of Honor. That latter claim violated the Act, passed in 2005. It makes it a federal crime for anyone to “falsely represent[] himself or herself . . . verbally or in writing, to have been awarded” any military...

Not in Montana

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At the opening of each oral argument session, a Supreme Court clerk announces, “All those having business before this honorable Court draw nigh and you shall be heard.”But does the Court really listen? We are about to witness an interesting case study. Late last week, the Court announced a stay of the Montana’s Supreme Court’s judgment in Western Tradition Partnership v. Bullock . In that case , a majority of the state court in essence said to the Supreme Court majority, “You boys don’t know enough to pour water out of a boot.” The opinion was a direct challenge to the Court’s most controversial decision in at least a decade— Citizens United v. Federal Election Commission . The Court will now consider a formal petition for cert., due by the end of next month. Citizens groups, states, and business groups can file amicus briefs on the issues raised by the case, laying out their critique of Citizens United . Two Justices of the Court have invited them to do exactly that. In a statement...

No Celebrity Gossip Here

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United States v. Alvarez, which I wrote about yesterday , is fascinating in its complexity. The government in this case has asked the Court to hold that it can punish people who lie, regardless of whether they lie to extort money, win political office, or just to impress people at the corner tavern. The principle is breathtaking in its sweep. In the past, the Court has approved statutes that punish knowingly reckless false statements of fact—but only when those statements cause some measurable harm. Examples are a defamatory lie about another person (“X is a serial killer”); a lie used to extract money from a credulous listener (“I own that bridge and I’ll sell it to you); or one told for the purpose of inflicting emotional damage on another (“X’s father beat his mother regularly during X’s formative years”). But Alvarez concerns what we might call the semi-crazy lie. The defendant told a public meeting that he’d been awarded the Medal of Honor; he hadn’t. The federal government...

Damn Lies and Double Jeopardy

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The Supreme Court comes back into session Tuesday. On that day, the Justices will earn their salaries (and then some) by considering the following questions: Whether Section 8(b) of Real Estate Settlement Procedures Act prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties. Whether , under 28 U.S.C. § 1920(6), costs incurred in translating written documents are “compensation of interpreters,” which under the statute are awarded to the prevailing party in a federal lawsuit. Reader, these questions are important, but forgive me if I draw the veil of modesty over those Tuesday cases in favor of Wednesday’s, which are important too—and pose more broadly interesting puzzles. The first, Blueford v. Arkansas , is a double-jeopardy case. The Fifth Amendment provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.”...

Government Has to Give Reasons

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The Ninth Circuit’s opinion in Perry v. Brown drew a letter to the Court suggesting the decision stemmed from “mold infestation” in court buildings. The correspondent is not the only person who hates the decision but has trouble explaining, in legal terms, why. The case illustrates the concept of “governmental interest” in constitutional law. My Con Law prof, Walter Dellinger, once said the course could be summed up in two sentences: “When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason.” Judges weigh “stuff government wants to do to you” against government’s reasons, or “interests.” Government wants to do a lot of things—keep order in the streets, prevent outbreaks of the Black Death, make the downtown mall nice, etc. In constitutional law, most of those interests are “legitimate”; there’s no reason government can’t pursue them. Only a few are “compelling,” which means things would descend into...

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